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Date: 08-12-2019

Case Style:

Gustavo Aybar v. The State of Texas

Case Number: NO. 01-18-00018-CR NO. 01-18-00019-CR NO. 01-18-00020-CR

Judge: Laura Carter Higley

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: The Honorable Kim K Ogg
Clinton A. Morgan

Defendant's Attorney: Nicholas Mensch
Scott Christopher Pope

Description:





Around 6:00 p.m. on December 26, 2015, Charles Futrell and his wife,
Yolanda, were traveling west on Interstate 10 (I-10) through Houston to attend a
family Christmas celebration in Katy. Charles was driving their Nissan Versa, and
Yolanda was in the passenger’s seat. They were in the high-occupancy vehicle lane
(HOV) lane, traveling around 60 miles per hour with the flow of traffic.
To get to their destination, the Futrells needed to take the Barker Cypress
exit from I-10. Charles moved from the HOV lane and began to make his way into
the stream of traffic on the freeway to reach the Barker Cypress exit.
At that time, Aybar was also on I-10. He was not far behind the Futrells. He
was driving a white Cadillac with his three-year-old son, G.A., in the backseat.
Unlike the Futrells, Aybar was not driving with the flow of traffic. Aybar was
driving his Cadillac around 100 miles per hour, weaving in and out of traffic,
cutting off cars, and driving on the shoulder. Other motorists had called 9-1-1 to
report Aybar’s highspeed, erratic driving.
M. Henry was also on I-10 behind the Futrells. Henry later testified that he
was driving 60 miles per hour. He said that traffic was moderate and flowing
continuously.
As he drove, Henry looked in his rearview mirror. He saw Aybar’s Cadillac
and a Toyota Camry coming up fast behind him, weaving through traffic. He
estimated that the two cars were traveling at 90 to 100 miles per hour. Henry
thought that the two cars were racing because they were moving from lane to lane
trying to pass other cars. The Camry made it through traffic and passed Henry, but
Aybar’s Cadillac did not. In his rearview mirror, Henry saw Aybar coming up fast
4

directly behind him. To avoid hitting Henry, Aybar swerved to the left. Henry then
saw Aybar’s Cadillac clip the back-passenger side of the Futrell’s Nissan Versa.
The Futrell’s vehicle flipped, flew over the hood of Henry’s car, and rolled across
the roadway, landing on its roof on the other side of the freeway. Aybar’s Cadillac
hit the concrete barrier bordering the HOV lane, bounced off the barrier, and hit
the back of Henry’s car.
Motorists stopped at the scene to help. They flipped the Futrell’s Nissan over
right-side up. Yolanda Futrell was already dead, having died from the injuries she
sustained in the accident. An autopsy showed that the cause of Yolanda’s death
was blunt trauma to her head, torso and extremities, with multiple fractures and
brain injuries.
Charles Futrell survived the crash but was injured. An artery in Charles’s
arm was severed during the accident, and he suffered a broken neck and shoulder.
Charles was airlifted from the accident scene by helicopter to a level-one trauma
hospital. At trial, Charles indicated that he had healed from his physical injuries
but still had difficulty with his equilibrium.
Henry bumped his head in the accident but did not receive medical
treatment. Aybar’s son, G.A., who was in the backseat of the Cadillac, had a facial
abrasion after the accident.
5

Aybar was indicted for the offenses of child endangerment, manslaughter,
and aggravated assault. With respect to child endangerment, the indictment alleged
that Aybar had “intentionally and knowingly engage[d] in conduct that placed
[G.A.], a child younger than fifteen years of age . . . in imminent danger of bodily
injury, namely, by weaving in and out of traffic at a high rate of speed.” The
manslaughter indictment alleged that Aybar had “recklessly cause[d] the death of
Yolanda Futrell by failing to control speed, failing to maintain a single lane, failing
to keep a proper lookout, and by driving his motor vehicle and causing it to collide
with a motor vehicle occupied by Yolanda Futrell.” The aggravated assault
indictment alleged that Aybar had “recklessly cause[d] serious bodily injury to
Charles Futrell . . . by failing to control speed, failing to maintain a single lane,
failing to keep a proper lookout, and by driving his motor vehicle and causing it to
collide with a motor vehicle occupied by [Charles Futrell].”
Among the State’s witnesses were Charles Futrell, eyewitnesses to the crash,
first responders, law enforcement officers who had investigated the crash, and the
assistant medical examiner. The State’s evidence also included 9-1-1 calls,
describing Aybar’s driving before the accident and indicating that Aybar had
caused the crash. In addition, crash data recorded by Aybar’s Cadillac showed that,
four seconds before the crash, Aybar was going 103 miles per hour.
6

Aybar testified in his own defense during the guilt-innocence phase. He
stated that, at the time of the accident, he was taking his three-year-old son, G.A.,
to a birthday party. He said that his friend, Latrell, was in the front-passenger seat
of the car and that he and Latrell had smoked a half a cigar of marijuana about 30
minutes before the crash. Aybar claimed that marijuana makes him “focused” and
that he felt focused while driving before the accident.
Aybar testified that he routinely drives fast while weaving in and out of
traffic. And he said that he has driven other cars at over 100 miles per hour, but he
had never driven the Cadillac that fast. Aybar did not deny that he was going over
100 miles per hour before the accident, but he said that he was not looking at his
speedometer that night.
Aybar explained why he was driving so fast and erratically at the time of the
accident. He denied that he was racing with the Camry before the accident. Aybar
said that he did not know the directions to the birthday party, so he was following
his friend, K. Melton, who was driving the Camry. He said that Melton was driving
fast and weaving in and out of traffic. Aybar claimed that he was trying to keep up
with her and to not lose sight of the Camry, causing him to drive fast and mimic
Melton’s erratic driving. Aybar said that Melton entered the HOV lane, which
surprised him, and he was trying to keep pace with her. He claimed that the
accident occurred when Melton suddenly exited the HOV lane and cut across all
7

lanes of traffic. Aybar said that Melton’s action caused the cars in front of him to
brake. He then pushed hard on his brakes and steered the Cadillac to the left to
avoid hitting the car in front of him and cars to his right. He testified that he lost
control of his car and hit the concrete barrier to his left.
Aybar denied hitting any other car. Specifically, he denied hitting the
Futrells’ vehicle and Henry’s car. But he agreed that he had caused the accident.
When asked how, Aybar testified, “Me wrecking, me wrecking, me hitting the
[concrete barrier] wall and causing a big commotion, that’s what caused the wreck.
I admit that.”
On direct examination, Aybar indicated that he was not aware of the risks
that his driving posed to other drivers that night and he did not “think that this was
going to happen.” On cross-examination, however, Aybar acknowledged that he
was aware that driving in the manner he was that night could result in a crash and
that his son and other people could be injured.
The jury found Aybar guilty of the offenses of child endangerment,
manslaughter, and aggravated assault. After finding enhancement allegations to be
true, the jury assessed Aybar’s sentence at 2 years in prison for child
endangerment, 27 years in prison for manslaughter, and 12 years in prison for
aggravated assault.
Aybar appeals each of the three judgments of conviction.
8

Sufficiency of the Evidence
In his first issue in the child-endangerment case, Aybar claims that the
evidence was not sufficient to support his judgment of conviction.
A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under a single
standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)
(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This
standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
319 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
Pursuant to the Jackson standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
319; In re Winship, 397 U.S. 358, 361 (1970); Laster v. State, 275 S.W.3d 512,
517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007). We can hold evidence to be insufficient under the Jackson standard in
two circumstances: (1) the record contains no evidence, or merely a “modicum” of
evidence, probative of an element of the offense, or (2) the evidence conclusively
9

establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 & n.11, 320; see
also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319; see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An
appellate court presumes that the factfinder resolved any conflicts in the evidence
in favor of the verdict and defers to that resolution, provided that the resolution is
rational. See Jackson, 443 U.S. at 326.
In our review of the record, direct and circumstantial evidence are treated
equally; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point
directly and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the conviction.”
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Elements of Child Endangerment
A person commits the offense of child endangerment if he intentionally,
knowingly, recklessly, or with criminal negligence, by act or omission, engages in
conduct that places a child younger than 15 years in imminent danger of death,
10

bodily injury, or physical or mental impairment. TEX. PENAL CODE § 22.041(c).
Here, as modified by the indictment, the State was required to prove beyond a
reasonable doubt that Aybar “intentionally and knowingly engage[d] in conduct
that placed [his son] a child younger than fifteen years of age . . . in imminent
danger of bodily injury, namely, by weaving in and out of traffic at a high rate of
speed[.]” See TEX. PENAL CODE § 22.041(c). The indictment did not allege that
Aybar had committed child endangerment recklessly or with criminal negligence.
C. Analysis
Aybar asserts that the evidence is legally insufficient to support his
conviction because the offense of endangering a child is a result-of-conduct
offense, and the State failed to prove beyond a reasonable doubt that Ayba
intentionally or knowingly endangered his son.
Courts “distinguish offenses into three different categories of offenses based
on the offense-defining statute’s gravamen, or focus: ‘result of conduct,’ ‘nature of
conduct,’ or ‘circumstances of conduct’ offenses.” Robinson v. State, 466 S.W.3d
166, 170 (Tex. Crim. App. 2015). Result-of-conduct offenses concern the product
of certain conduct. Robinson, 466 S.W.3d at 170. Nature-of-conduct offenses are
defined by the act or conduct that is punished, regardless of any result that might
occur. Id. Lastly, circumstances-of-conduct offenses prohibit otherwise innocent
behavior that becomes criminal only under specific circumstances. Id.
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Aybar asserts that child endangerment is a result-of-conduct offense. For a
result-of-conduct offense, the culpable mental state relates not to the nature or
circumstances surrounding the charged conduct, but to the result of that conduct.
See Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003). For this
reason, Aybar asserts that, as charged in the indictment, the State was required to
prove that he intentionally or knowingly placed his three-year-old son in imminent
danger of bodily injury. Even if we assume (without deciding) that child
endangerment is a result-of-conduct offense, as Aybar asserts, the evidence
presented at trial was sufficient to support Aybar’s conviction.3 Specifically, the
evidence was sufficient to show that Aybar knowingly placed his three-year-old
son in imminent danger of bodily injury.
A person acts “knowingly” with respect to a result of his conduct when he is
aware that his conduct is reasonably certain to cause the result. TEX. PENAL CODE
§ 6.03(b). Intent, being a question of fact, is within the sole purview of the jury.
3 The State disagrees with Aybar’s characterization of child endangerment as a result-of-the conduct offense; it asserts that it is a nature-of-the conduct offense. We note that courts have disagreed regarding whether child endangerment is a “nature of conduct” or “result of conduct” offense. Compare Walker v. State, 95 S.W.3d 516, 520–21 (Tex. App.—Fort Worth 2002, pet. ref’d) (concluding that child endangerment is nature-of-the-conduct offense because Section 22.041(c) expresses clear legislative intent that a person commits child endangerment if he intentionally or knowingly “engages in conduct” that places child in imminent danger of death, bodily injury, or physical, or mental impairment), with Millslagle v. State, 81 S.W.3d 895, 897 n.1 (Tex. App.—Austin 2002, pet. ref’d) (concluding that, even though Section 22.041(c) contains phrase “engages in conduct,” child endangerment appears to be “result of conduct” offense).
12

Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). Criminal intent may
be inferred from the defendant’s conduct and the surrounding circumstances.
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
In his brief, Aybar recognizes as follows:
It [is] undisputed that [Aybar] was driving at a high rate of speed and was weaving in and out of traffic before the crash. Multiple 911 calls were introduced into evidence that reported the [Aybar’s] Cadillac was erratically driving at a least 100 miles per hour and caused the accident. Multiple witnesses also testified as to [Aybar’s] speeding and weaving in and out of traffic and one witness also believed that the [Aybar] and the driver of the Camry were racing.
During cross-examination, Aybar acknowledged that he had been driving
erratically at high speeds “off and on” over the course of many miles before the
crash. Aybar also testified as follows:
[The State:] And you know that people in a car that’s speeding along at a hundred miles per hour that they could get into a crash, right?
[Aybar:] Yes, sir.
Q. And they could suffer bodily injury as a result of it, right?
A. Yes, sir.
Q. And you were aware that you or Latrell or even [your son, G.A.] could have been injured in a crash?
A. Yes, sir.
Q. And you were aware that other people could have been injured in a crash as well?
A. Yes, sir.
13

Q. Based upon you weaving in and out of traffic, right?
A. Yes, sir.
Q. Based upon you traveling at a high rate of speed, right?
A. Yes, sir.
. . . .
Q. You didn’t know that if you hit another car doing a hundred that that person might suffer bodily injury?
A. Oh, yes, sir, yes, sir.
Q. So you’re aware of all of these things, right?
A. Yes, sir.
We are mindful that juries are free to “use common sense and apply
common knowledge, observation, and experience gained in the ordinary affairs of
life when giving effect to the inferences that may reasonably be drawn from the
evidence.” Aguilar v. State, 263 S.W.3d 430, 434 (Tex. App.—Houston [1st Dist.]
2008, pet. ref’d). Based on the evidence showing that Aybar was speeding and
driving erratically and his acknowledgment that he was aware of the risks of
driving in such a manner, including the risk of injury, the jury could have
rationally inferred that Aybar knew that he was placing his three-year-old son in
imminent danger of bodily injury.
In his brief, Aybar points to portions of his own testimony to support his
claim that the evidence was not sufficient. He relies on testimony in which he
14

“described himself as a fast driver whose practice was to weave in and out of lanes
while he was driving” and in which he claimed that he had driven other cars more
than 100 miles per hour without incident. He also points to his testimony indicating
that he was speeding and weaving in and out of traffic because he was following
Melton to a birthday party, and Melton was driving fast and erratically. He
indicated that he was mirroring her driving to keep up with her because he did not
know the route to the party. Aybar also testified that he did not hear other cars
honking at him, but he admitted that he had the music so loud in his car that he
would not have heard the honking. Aybar points out that he testified that he did not
know how fast he was driving that night because he did not look at the
speedometer. He also indicated in his testimony that he felt “confident” and
“focused” while driving that evening. And he points out that he testified that “he
was not aware of the risks that his driving posed for other drivers that night as he
did not think this would happen.”
Aybar’s arguments focus on the evidence favorable to him rather than
viewing the evidence in the light most favorable to the verdict, as we are required
to do. See Jackson, 443 U.S. at 319. And his arguments do not specifically address
his state of mind as it relates to the awareness he had regarding endangering his
son. His arguments also ignore the jury’s ability to believe or disbelieve all or part
of his testimony, resolve conflicts in the evidence, and draw reasonable inferences
15

from the evidence. See Murray v. State, 457 S.W.3d 446, 448–49 (Tex. Crim. App.
2015). We must presume that the factfinder resolved any conflicting inferences in
favor of the verdict, and we defer to that resolution. Id.; see Jackson, 443 U.S. at
326.
Given the evidence presented at trial and viewing it as we must, we conclude
that a rational trier of fact could have found beyond a reasonable doubt that Aybar
knowingly placed his three-year-old son in imminent danger of bodily injury. See
TEX. PENAL CODE § 22.04(c). We hold that the evidence is sufficient to support the
judgment of conviction for the offense of child endangerment.
We overrule Aybar’s first issue in the child-endangerment case.
Jury Charge Error
In his second issue in the child-endangerment case, Aybar contends that the
trial court erred by failing to properly tailor the definitions of the culpable mental
states in the jury charge to the applicable conduct element of the offense and,
because of this error, he suffered egregious harm. We disagree.
A. Standard of Review
We review alleged jury charge error in two steps: first, we determine
whether error exists; if so, we then evaluate whether sufficient harm resulted from
the error to require reversal. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim.
App. 2017); Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). The
16

degree of harm required for reversal depends on whether the jury charge error was
preserved in the trial court. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim.
App. 2016); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)
(setting forth procedure for appellate review of claim of jury charge error). If the
jury charge error has not been properly preserved by an objection or request for
instruction, as here, the error must be “fundamental” and requires reversal only if it
was “so egregious and created such harm that the defendant was deprived of a fair
and impartial trial.” Marshall, 479 S.W.3d at 843; accord Almanza, 686 S.W.2d at
171.
B. Analysis
A trial court is statutorily obligated to instruct the jury on the “law
applicable to the case.” See TEX. CODE CRIM. PROC. art. 36.14; Arteaga, 521
S.W.3d at 334. Each statutory definition that affects the meaning of an element of
the offense must be communicated to the jury. Villarreal v. State, 286 S.W.3d 321,
329 (Tex. Crim. App. 2009). The jury charge should tell the jury what law applies
and how it applies to the case. See Delgado v. State, 235 S.W.3d 244, 249 (Tex.
Crim. App. 2007).
The trial court’s duty to instruct the jury on the “law applicable to the case”
exists even when defense counsel fails to object to inclusions or exclusions in the
charge. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); Taylor v.
17

State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). The trial court is “ultimately
responsible for the accuracy of the jury charge and accompanying instructions.”
Vega, 394 S.W.3d at 518.
Penal Code Section 6.03 sets out four culpable mental states: intentionally,
knowingly, recklessly, and criminally negligently. TEX. PENAL CODE § 6.03
Section 6.03 also delineates three “conduct elements” that can be involved in an
offense: (1) the nature of the conduct, (2) the result of the conduct, and (3) the
circumstances surrounding the conduct. Id; see Robinson, 466 S.W.3d at 170;
McQueen, 781 S.W.2d at 603.
An offense may contain any one or more of these three conduct elements,
which alone or in combination form the overall behavior that the legislature has
intended to criminalize, and it is those essential conduct elements to which a
culpable mental state must apply. McQueen, 781 S.W.2d at 603. The Court of
Criminal Appeals has determined that, “[i]n a jury charge, the language in regard
to the culpable mental state must be tailored to the conduct elements of the
offense.” Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015).
When “specific acts are criminalized because of their very nature, a culpable
mental state must apply to committing the act itself.” McQueen, 781 S.W.2d at
603. “On the other hand, unspecified conduct that is criminalized because of its
result requires culpability as to that result.” Id. “A trial court errs when it fails to
18

limit the language in regard to the applicable culpable mental states to the
appropriate conduct element.” Price, 457 S.W.3d at 441 (citing Cook v. State, 884
S.W.2d 485, 491 (Tex. Crim. App. 1994)).
Here, in the abstract portion of the jury charge, the trial court defined the
indicted child-endangerment offense as follows: “[A] person commits an offense if
he intentionally or knowingly, by act, engages in conduct that places a child
younger than fifteen years in imminent danger of bodily injury.” See TEX. PENAL
CODE § 22.041(c). The trial court then provided the following definitions regarding
the culpable mental states of “intentionally” and “knowingly”:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
These definitions track the language of Penal Code Section 6.03 and encompass all
three “conduct elements.” See id. § 6.03.
Aybar maintains that the offense of child endangerment involves only one
conduct element: result of the conduct. On appeal, Aybar asserts that “the inclusion
of nature-of-conduct instructions within the definition of intentionally and the
inclusion of nature-of-conduct and circumstances-of-conduct instructions within
19

the definition of knowingly were error.” In short, Aybar contends that, because
child endangerment is result-of-conduct offense, the trial court erred by not
limiting the culpable mental states of intentionally and knowingly to the result of
his conduct.
Even if we assume that the trial court erred by not limiting the culpable
mental states of intentionally and knowingly to the result of his conduct, we still
must determine whether Aybar was harmed by that error. Aybar did not object at
trial to the non-tailored definitions of the culpable mental states in the jury charge.
Consequently, the jury charge error was not preserved, and reversal is required
only if the error was “so egregious and created such harm that the defendant was
deprived of a fair and impartial trial.” See Marshall, 479 S.W.3d at 843; Villarreal,
453 S.W.3d at 433; Almanza, 686 S.W.2d at 171; see also State v. Ambrose, 487
S.W.3d 587, 595 (Tex. Crim. App. 2016) (reaffirming that under precedent of
Court of Criminal Appeals, unpreserved jury charge error does not require new
trial unless error causes “egregious harm”).
Jury charge error is egregiously harmful if it affects the very basis of the
case, deprives the defendant of a valuable right, or vitally affects a defensive
theory. Arteaga, 521 S.W.3d at 338; Marshall, 479 S.W.3d at 843; Arrington v.
State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). “Egregious harm is a ‘high
and difficult standard’ to meet, and such a determination must be ‘borne out by the
20

trial record.’” Villarreal, 453 S.W.3d at 433 (quoting Reeves v. State, 420 S.W.3d
812, 816 (Tex. Crim. App. 2013)). We will not reverse a conviction unless the
defendant has suffered “actual rather than theoretical harm.” Id.
Neither party has the burden to show harm or lack of harm; rather, we must
examine the record and make an independent determination whether an appellant
suffered actual harm as opposed to theoretical harm. Marshall, 479 S.W.3d at 843.
In examining the record to determine whether jury charge error has resulted in
egregious harm, we consider four factors: (1) the entirety of the jury charge, (2) the
state of the evidence, including the contested issues and weight of probative
evidence, (3) the arguments of counsel, and (4) any other relevant information
revealed by the trial record as a whole. Arteaga, 521 S.W.3d at 338; Marshall, 479
S.W.3d at 843; Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171.
Entirety of the Jury Charge
We begin the harm analysis by looking at the charge in its entirety. Although
the charge did not limit the culpable mental states to the result of Aybar’s conduct,
the abstract portion of the charge did define the culpable mental states of
intentionally and knowingly as they relate to the result of Aybar’s conduct.
The charge’s application paragraph contained the statutory elements of child
endangerment as modified by the indictment, thereby instructing the jury on the
law applicable to the case. See TEX. PENAL CODE § 22.041(c). The application
21

paragraph instructed the jury to find Aybar guilty of the offense of child
endangerment if it found “from the evidence beyond a reasonable doubt that the
defendant, Gustavo Aybar . . . intentionally or knowingly engage[d] in conduct that
placed [G.A.], a child younger than fifteen years of age, in imminent danger of
bodily injury, namely, by weaving in and out of traffic at a high rate of speed.”
However, neither the application paragraph nor any other part of the charge
apprised the jury that the culpable mental states were limited to the result of
Aybar’s conduct. Thus, assuming Aybar is correct about the complained-of error,
consideration of the entirety of the charge weighs in favor of finding egregious
harm. See, e.g., Arrington, 451 S.W.3d at 841 (concluding first factor weighed in
favor of finding egregious harm because entirety of charge did not apprise jury of
unanimity requirement).
State of the Evidence
The second factor requires us to review the state of the evidence, including
the contested issues and weight of probative evidence. Villarreal, 453 S.W.3d at
433. Under this factor, “we look to the state of the evidence to determine whether
the evidence made it more or less likely that the jury charge caused appellant
actual harm.” Arrington, 451 S.W.3d at 841.
Much of the evidence was uncontroverted, showing that Aybar drove at high
rates of speed, topping 100 miles per hour, as he wove through traffic on a Houston
22

freeway. The evidence largely focused on the danger Aybar posed to other
motorists that night, including the Futrells. The contested issue at trial primarily
centered on whether Aybar had the culpable mental state of recklessness needed to
convict him of manslaughter and aggravated assault. The State’s position was that
Aybar acted recklessly in causing Yolanda Futrell’s death and Charles Futrell’s
bodily injury. Aybar asserted that he acted only negligently with respect to those
offenses.
Some evidence, however, was offered relating specifically to the offense of
child endangerment. Aybar admitted that he knew that his son was in the backseat,
and he knew that “a car that’s speeding along at a hundred miles per hour” could
crash, and people in the car “could suffer bodily injury as a result.” He also
admitted that he knew that his son could have been injured in a crash. Although he
indicated that he was not aware of the risks that his driving posed to other drivers
that night, Aybar admitted that he was aware of the risk of injury to his son that his
high-speed, erratic driving posed. The evidence specifically probative of the
offense of child endangerment was not directed at Aybar’s conduct, rather it
focused on whether Aybar knew that his conduct endangered his son. In this
regard, the evidence focused the jury on the result of Aybar’s conduct with respect
to child endangerment. Thus, the state of the evidence did not make it likely that
the complained-of charge error caused Aybar actual harm.
23

Arguments of Counsel
We also consider whether any statements during the trial by the State, the
defense, or the trial court may have exacerbated or ameliorated the error in the jury
charge. Arrington, 451 S.W.3d at 844.
Although the closing arguments of the State and the defense focused
primarily on the offenses of manslaughter and aggravated assault, each side made
remarks pertinent to the offense of child endangerment. Defense counsel argued
that, immediately before the accident, Aybar took evasive maneuvers to avoid
hitting the cars to his right because Aybar knew that he had “his little boy sitting
there,” and “he is going at a high rate of speed.” The defense’s argument
highlighted the risk of danger (the result) of which Aybar knew he had placed his
son by his conduct.
Regarding the offense of child endangerment, the State made the following
statement:
[Child endangerment] doesn’t have to actually result in bodily injury to that child, it just has to have conduct that places a child younger than 15 years in imminent danger of that bodily injury. So, that bodily injury, that hurt, that ouch doesn’t have to happen. The fact that he put his own son in a situation where it was imminent that that could have occurred, that’s sufficient under the law.
The State’s argument does not mention the required culpable mental states
of intentionally or knowingly. But the argument did focus on the result of conduct
necessary to prove child endangerment. The State explained to the jury that, to find
24

Aybar guilty of child endangerment, the result of his conduct did not need to be
actual bodily injury to his son; rather, the result of his conduct needed to be placing
his son in imminent danger of bodily injury. At two other points in its argument,
the State argued that, by his conduct, Aybar put his son in danger of bodily injury
that night. The State’s argument indicated that Aybar knew the danger to his son
but “didn’t care.” In short, the State’s argument highlighted the result of Aybar’s
conduct with respect to placing his son in danger of bodily injury. Thus, after
considering the arguments of counsel, the third factor weighs against a finding of
egregious harm.
Any other relevant information
Finally, our review of the record has disclosed no other relevant information
that requires our consideration in the egregious-harm analysis.
Conclusion Regarding Harm
In his brief, Aybar writes that “[i]f this Court agrees with [his] contention
that endangering a child is a result-of-conduct offense, this potentially would have
caused the jury confusion as to which definition of intentionally or knowingly to
apply.” Perhaps Aybar is correct. However, potential or theoretical harm is not
enough; the harm must be actual. See Marshall, 479 S.W.3d at 843.
Of the four factors, only the first—the charge itself—weighs in favor of a
finding of egregious harm. See Arrington, 451 S.W.3d at 845. After reviewing the
25

record and considering the required factors, we conclude that any harm Aybar
suffered from the trial court’s failure to limit the culpable mental states of
knowingly and intentionally to the result of Aybar’s conduct in the abstract portion
of the charge was theoretical, not actual. We hold that the charge error, if any, did
not egregiously harm Aybar.
We overrule Aybar’s second issue in the child-endangerment case.
Ineffective Assistance of Counsel
In his first issue in both the manslaughter and aggravated-assault cases,
Aybar contends that the he received ineffective assistance of counsel during the
punishment phase of trial. Aybar asserts that his trial counsel should have objected
to a portion of the State’s closing argument, which Aybar contends amounted to a
comment on his failure to testify during the punishment phase of trial.
A. Applicable Legal Principles
To prevail on a claim of ineffective assistance of counsel, an appellant must
show the following: (1) counsel’s performance fell below an objective standard of
reasonableness and (2) a reasonable probability exists that, but for counsel’s errors,
the result would have been different. See Strickland v. Washington, 466 U.S. 668,
687–88, 694 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. In reviewing counsel’s performance, we
26

look to the totality of the representation to determine the effectiveness of counsel,
indulging a strong presumption that counsel’s performance falls within the wide
range of reasonable professional assistance or trial strategy. See Robertson v. State,
187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006).
Aybar has the burden to establish both prongs by a preponderance of the
evidence. See Jackson v. State, 973 S.W.2d 954, 956–57 (Tex. Crim. App. 1998).
“An appellant’s failure to satisfy one prong of the Strickland test negates a court’s
need to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex.
Crim. App. 2009).
B. Analysis
During closing argument in the punishment phase, the State discussed
Aybar’s extensive criminal history. As part of that discussion, the State made the
following remarks of which Aybar now complains:
Because it’s all about that money. It’s all about power. It’s all about respect. Because bitches ain’t shit.4 He doesn’t care about any of you, about any person who he broke into their car, who he stole their car. He does not care because he continues to do it.
On appeal, Aybar asserts that the State’s remarks were an improper
comment on his demeanor and his lack of remorse. He contends that such remarks
would have been understood by the jury as a comment on his failure to testify.
4 During the punishment phase, the State introduced into evidence photos of Aybar’s tattoos. One photo shows a tattoo on the back of Aybar’s hand that reads, “Bitches Ain’t Shit.”
27

Commenting on a defendant’s failure to testify does not fall within any of
the permissible categories of jury argument and violates the United States and
Texas Constitutions. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App.
2001); see U.S. CONST. amend. V; TEX. CONST. art. I, § 10. “A comment on a
defendant’s lack of remorse is an impermissible reference to the defendant’s failure
to testify because only the defendant can testify as to his own remorse.” Orellana
v. State, 489 S.W.3d 537, 549 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
“The defendant’s demeanor while in the courtroom is also an inappropriate subject
for the State to discuss because it concerns facts not in evidence.” Id. (citing Davis
v. State, 964 S.W.2d 14, 17 (Tex. App.—Tyler 1997, pet ref’d)).
Aybar claims that his trial counsel’s performance was deficient because he
did not object to the complained-of remarks by the State. Even if we assume,
without deciding, that the State’s remarks were an improper comment on Aybar’s
failure to testify, we cannot conclude, on this record, that counsel’s performance
was deficient.
Ordinarily, counsel should have an opportunity to explain his actions before
being held ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.
2003). Because no motion for new trial was filed, the record is silent regarding
why Aybar’s trial counsel did not object.
28

To satisfy the first prong of Strickland on a silent record, it must be apparent
“that counsel’s performance fell below an objective standard of reasonableness as a
matter of law, and that no reasonable trial strategy could justify trial counsel’s acts
or omissions, regardless of his or her subjective reasoning.” Lopez, 343 S.W.3d at
143; see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)
(stating that, to be deficient, attorney’s conduct must “so outrageous that no
competent attorney would have engaged in it”). Here, we do not have such a case.
It is possible that Aybar’s trial counsel chose not to object based on a reasonable
trial strategy. See Orellana, 489 S.W.3d at 550 (holding that it could have been
reasonable trial strategy for attorney not to object to State’s remarks that appellant
lacked remorse). “One such reasonably sound strategic motivation could have been
the desire to avoid drawing additional attention to the prosecutor’s opinion.” Kuhn
v. State, 393 S.W.3d 519, 539 (Tex. App.—Austin 2013, pet. ref’d); see Lopez v.
State, 565 S.W.3d 879, 887 (Tex. App.—Houston [14th Dist.] 2018, pet. filed)
(“[W]e have recognized that the failure to object to improper jury argument may be
based on a reasonable trial strategy: to avoid drawing attention to the prosecutor’s
statement.”).
In short, trial counsel has not been given a chance to explain his conduct.
We cannot say that the counsel’s conduct of not objecting to the complained-of
jury argument was so outrageous that no competent attorney would have engaged
29

in it. See Goodspeed, 187 S.W.3d at 392; Lopez, 565 S.W.3d at 887. For these
reasons, we conclude that Aybar has not demonstrated that his trial counsel’s
performance fell below an objective standard of reasonableness; thus, he has not
satisfied the first Strickland prong. We hold that Aybar has failed to show, by a
preponderance of the evidence, that he received ineffective assistance of counsel at
trial. See Strickland, 466 U.S. at 687–88, 694.
We overrule Aybar’s first issue in the manslaughter and aggravated-assault
cases.
Issues Related to Court Costs
In the remaining issues, Aybar challenges various costs assessed against him
in each of the appeals.
A. Duplicative Court Costs
In the third issue in the child-endangerment case and in the second issue in
the aggravated-assault case, Aybar correctly contends that, under Code of Criminal
Procedure article 102.073(a), the trial court erred in assessing duplicative court
fees in each of the three cases. See TEX. CODE CRIM. PROC. art. 102.073. Under the
statute, costs and fees may only be assessed once when, as here, a defendant is
convicted of multiple offenses arising from a single criminal action. See id. The
State agrees that the assessment of the duplicative costs in each judgment of
conviction was error.
30

Article 102.073 of the Code of Criminal Procedure provides, in relevant
part, as follows:
(a) In a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.

(b) In a criminal action described by Subsection (a), each court cost or fee the amount of which is determined according to the category of offense must be assessed using the highest category of offense that is possible based on the defendant’s convictions.
Id.
In each of the three judgments of conviction, court costs are listed “as
assessed.” The bill of cost accompanying each of the judgments shows the
following identical fees and costs were assessed in each of the three cases:
• Sheriff’s Jury Fee ($5) • Commitments ($5) • Release ($5) • District Clerk’s Fee ($40) • Jury Fee ($40) • Security Fee ($5) • Consolidated Court Cost ($133) • Jury Reimbursement Fee ($4) • DC Records Preservation ($25) • Support of Indg Defense ($2) • Support of Judiciary Fee ($6) • Court Technology Fee ($4) • Electronic Filing State ($5)

These identical costs and fees total $279.

31

To determine in which case the costs and fees should be assessed, we first
determine which offense is the highest category offense. See id. art. 102.073(b). As
charged here, child endangerment is a state jail felony. See TEX. PENAL CODE
§ 22.041(c), (f). Manslaughter and aggravated assault, as charged, are second
degree felonies. See id. §§ 19.04 (manslaughter), 22.02(a)(2), (b) (aggravated
assault). Thus, manslaughter and aggravated assault are the higher-category
offenses.
Between the manslaughter and aggravated-assault cases, we assess the fees
in the case that has the lowest trial court cause number. See Williams v. State, 495
S.W.3d 583, 590 (Tex. App.—Houston [1st Dist.] 2016, pet. dism’d). Here, the
case with the lowest cause number is the manslaughter case.5 Accordingly, the
costs and fees listed above, totaling $279, should be assessed in the manslaughter
case. We modify the judgments in the child-endangerment and aggravated-assault
cases to delete these costs. See TEX. R. APP. P. 43.2(b) (providing that the court of
appeals may “modify the trial court’s judgment and affirm it as modified”); Cates
v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013) (concluding that, when trial
court erroneously includes certain amounts as court costs in judgment, appeals
court should modify judgment to delete erroneous amount).
5 The trial court cause number in the manslaughter case is 1500417; the cause number in the aggravated assault case is 1500418.
32

We sustain Aybar’s third issue in the child-endangerment case and the
second issue in the aggravated-assault case
B. Constitutionality of “Summoning Witness/Mileage” Fees
In his fourth issue in the child-endangerment case and in his second issue in
the manslaughter case, Aybar complains that the “summoning witness/mileage”
fees, ordered to be collected from him as a court cost under Texas Code of
Criminal Procedure article 102.011(a)(3) and (b), violates the Separation of Powers
Clause of the Texas Constitution. See TEX. CONST. art. II, § 1. Our Court rejected
this constitutional challenge in Allen v. State, 570 S.W.3d 795, 808 (Tex. App.—
Houston [1st Dist.] Aug. 30, 2018, pet. granted) (op. on reh’g).6 Following Allen,
we reject Aybar’s constitutional challenge to the assessment of court costs for the
summoning witness/mileage fee. See id.; Hines v. State, 570 S.W.3d 297, 305
(Tex. App.—Houston [1st Dist.] 2018, no pet.) (applying Allen).
We overrule Aybar’s fourth issue in the child-endangerment case and his
second issue in the manslaughter case.
C. Jury Fee
Code of Criminal Procedure Article 102.004(a) authorizes the assessment of
a $40 jury trial fee as a court cost. See TEX. CODE CRIM. PROC. art. 102.004(a). In
6 The Texas Court of Criminal Appeals granted petition for review in Allen on December 20, 2018. The case was submitted to the Court of Criminal Appeals on March 27, 2019 and remains pending there as of the date of issuance of this memorandum opinion.
33

his third issue in the manslaughter case, Aybar argues that Article 102.004(a) is
facially unconstitutional because it violates the separation-of-powers provision of
the Texas Constitution in that it does not serve a legitimate criminal justice
purpose. See Salinas v. State, 523 S.W.3d 103, 106–10 (Tex. Crim. App. 2017);
see also TEX. CONST. art. II, § 1.
The Fourteenth Court of Appeals has held that article 102.004(a) does not
violate the separation-of-powers doctrine because the $40 jury fee is used for
legitimate criminal justice purposes. Johnson v. State, 562 S.W.3d 168, 179 (Tex.
App.—Houston [14th Dist.] 2018, pet. ref’d) (op. on reh’g). The Johnson court
determined that “section 113.004 [of the Code of Criminal Procedure] not only
allows but mandates that jury fees collected under article 102.004 be used for some
legitimate criminal justice purposes,” specifically to pay expenses relating to
criminal juries. Id.; see TEX. CODE CRIM. PROC. art. 113.004(b)(1).
The Second Court of Appeals, in Alvarez v. State, adopted the analysis and
reasoning of Johnson and held that article 102.004(a) is not facially
unconstitutional. Alvarez v. State, 571 S.W.3d 435, 441 (Tex. App.—Fort Worth
2018, pet. ref’d). We were recently presented with the same issue in Gaskill v.
State, an appeal transferred to us from the Second Court of Appeals.7 No. 01-18
7 See TEX. GOV’T CODE § 73.001 (authorizing transfer of cases between courts of appeals).

34

00606-CR, 2019 WL 2292987, at *6 (Tex. App.—Houston [1st Dist.] May 30,
2019, no pet. h.). We applied the holding in Alvarez and “likewise conclude[d] that
the $40 jury trial fee in article 102.004(a) is facially constitutional for the reasons
set forth in Johnson.8 Id. Today, in accordance with that conclusion, we hold that
the $40 jury trial fee in article 102.004(a) is facially constitutional for the reasons
set forth in Johnson, 562 S.W.3d at 174–80.
We overrule Aybar’s third issue in the manslaughter case.

Outcome: We affirm the judgment of conviction in the manslaughter case (trial court
cause number 1500417; appellate cause number 01-18-00019-CR). We modify the
judgments of conviction in the child-endangerment case (trial court cause number
1493128; appellate cause number 01-18-00018-CR) and in the aggravated-assault
case (trial court cause number 1500418; appellate cause number 01-18-00020-CR)
to delete the $279 in duplicative court costs and fees that were assessed in all three cases, and we affirm those judgments as modified.

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